AFT HK Limited Master Service Agreement
1 GENERAL
1.1 This Master Service Agreement (“Agreement”) governs your use of the Platform and the Services by establishing a legal agreement between AFT HK Limited (“Aspire HK”, “us”, “our” or “we”) and you (“you”, “your” or “Customer”). In this Agreement, the Customer and Aspire HK are individually referred to as a “Party” and collectively as the “Parties”.
1.2 You should download a copy of this Agreement and keep it for future reference, or you can ask us for a copy at any time. You can always see the most current version of this Agreement on our website here.
1.3 Prior to the use of our Services, you must register and create a multi-currency account (“MCA Account”) with Aspire HK. We will conduct due diligence on you for know-your-customer purposes before approving your MCA Account. Further details on customer due diligence are outlined in Clause 3.
1.4 Upon approval and activation of your MCA Account, you will gain access to our Platform and Services. By using our Services, you confirm your acceptance and agreement to this Agreement in their most current form, as posted on our website.
2 SERVICES
2.1 Aspire HK provides various Services which you may choose to use periodically, including but not limited to:
2.1.1 Payments & FX Services. The payments and foreign exchange services for the use of, multi currency account, collection, payout, and foreign exchange conversion in accordance with the terms and conditions for such services (“Payments & FX Schedule”).
2.2 This Agreement and the Product Schedules (collectively, the “Terms”) constitute the entire set of agreements between you and Aspire HK, and supersede all prior and contemporaneous agreements and understandings. Please read this Agreement carefully together with the Product Schedules (as applicable).
2.3 Aspire HK may impose interim or permanent restrictions on the use of all or any part of the Services based on regulatory requirements, your country of residence, identity verification checks, or business requirements as described in the Acceptable Use Policy. Such restrictions will be communicated at the time of implementation or promptly afterward if immediate action is necessary.
3 CUSTOMER DUE DILIGENCE
3.1 Our provision of the Services is subject to: (i) successful completion of customer due diligence; and (ii) no significant changes to your status during the term of these Terms.
3.2 If you do not pass our customer due diligence checks, we reserve the right to deny you the Services without providing any reason.
4 THE PLATFORM
4.1 Your MCA Account gives you access to the Services and Platform functionality that Aspire HK and our Affiliates may establish and maintain from time to time and in our sole discretion. Aspire may maintain different types of MCA Accounts for different types of users. The Services and Platform functionality available to you will vary based on your MCA Account type and how your MCA Account is configured by the account owners or admin (if applicable).
4.2 The Platform and Services may be available through different devices (for example, personal computers or mobile devices). The availability and features of the Platform and Services may vary depending on the type, system specifications and configuration of the device.
4.3 Your and your Authorized User’s access to the Platform and Services may be limited and subject to the Applicable Law of the country you or your Authorized User is located in. Aspire HK will not be responsible for any fees, charges and expenses such as data roaming charges or any other charges which may be imposed by your telecommunication or other service providers in connection with the access and use of the Platform and Services.
4.4 There may be circumstances where Aspire HK and/or the Partner may need to change the frequency and manner of use of the Services, transaction limits, operating hours and types of facilities and services. In certain situations, Aspire HK and/or the Partner may have to suspend the Services without giving you or your Authorized User prior notice. Under such circumstances, Aspire HK will not be responsible for any inconvenience, loss, damage or injury suffered by you, your Authorized User, or any other third party.
4.5 Aspire HK may introduce new or different forms of authentication service when you or your Authorized User wish to access the Platform and use the Services. Aspire HK may replace the authentication service from time to time without prior notice to you or your Authorized User.
5 AUTHORIZED USERS
5.1 The Customer may appoint an Authorized User to act on its behalf to conduct certain transactions or give instructions to Aspire HK under the Terms.
5.2 You are responsible for ensuring each Authorized User is aware of and complies with this Agreement, any other agreements with Aspire HK related to the use of the Platform and/or any Services, and the Partner Terms. References to “Customer,” “you,” and “your” shall include Authorized Users where contextually appropriate.
5.3 If you authorize any person to give Electronic Instructions on your behalf, you are responsible for their actions and omissions, including any liabilities and losses arising from payments or transactions initiated or authorized by them.
5.4 The Customer agrees that:
5.4.1 Authorized Users have the authority to provide Electronic Instructions for Services to Aspire HK on the Customer's behalf;
5.4.2 Aspire HK will rely on the authority of the Authorized User, and the Customer will be bound by the actions of the Authorized Users until Aspire HK is notified in writing of any changes to their authorization;
5.4.3 the Customer is responsible for ensuring appropriate persons are granted necessary authorization as Authorized Users;
5.4.4 Aspire HK may refuse access to Authorized Users if there are concerns about unauthorized or fraudulent access; and
5.4.5 the Customer will promptly report to Aspire HK any infringements or unauthorized access to the Platform or any Services.
5.5 Disputes between you and an Authorized User regarding your MCA Account or our Services are your responsibility. Aspire HK is not a party to any claim or dispute between you and your Authorized Users.
6 FEES
6.1 Aspire HK may charge fees for the Services (“Fees”). The Fees are as described on the Platform. The Fees will be notified to you via the Platform, or if applicable, via an order form when you subscribe for the Services, or as otherwise separately agreed by you. Fees will be deducted from your Aspire Checking Account if the funds are originated in USD; Fees that are not in USD will be deducted from your MCA Account. The Fees may be subject to revision without prior notice to you or your Authorized Users, and will be reflected on the Platform. Your or your Authorized User’s continued use of the Services after any such revision constitutes your consent to the revised Fees.
6.2 The Fees will be deducted from your MCA Account or be invoiced to you for settlement in accordance with the terms specified on the Platform, your order form, or in the relevant invoice. If you do not make payment of the Fees by the relevant due date, Aspire HK may charge a late fee and interest on the overdue amount and be entitled to suspend your access to the Platform or use of the Services until the overdue amount is paid in full.
6.3 If any amount owed to Aspire HK is outstanding, you agree that such outstanding amount may at Aspire HK’s discretion be deducted from your MCA Account. If your MCA Account does not have enough funds to pay the amount owed to Aspire HK, Aspire HK may, at your own cost, take reasonable steps to recover this amount (such as taking legal action or using debt collection services).
6.4 The Customer shall pay all invoiced amounts to Aspire HK in full without set-off or deduction of any kind on account of taxes, including where applicable goods and services, value added and/or withholding taxes. Accordingly, Aspire HK shall be entitled to gross up its invoices to include applicable taxes.
6.5 The Partner may separately charge you fees for the Partner Services it provides. You are responsible to the Partner for the settlement of such fees.
7 INTELLECTUAL PROPERTY
7.1 The contents on the Platform may not be reproduced, transmitted, published, performed, broadcast, stored, adapted, distributed, displayed, licensed, altered, hyperlinked, or otherwise used in any manner without Aspire HK’s prior written consent.
7.2 All trademarks, service marks, logos used on the Platform, patents, rights to inventions, copyright and related rights, trade names and domain names, rights in designs, database rights, rights in computer software, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of (and rights to apply for, renew or extend) (collectively, the “Intellectual Property Rights”), are the property of the Aspire Group and/or the respective third-party proprietors identified on the Platform. No license or right is granted, and access to the Platform and/or use of the Services should not be construed as granting any license or right to use any Intellectual Property Rights without prior written consent. No trademark, service mark, or logo used on the Platform may be used as a hyperlink or to mark any hyperlink to any Aspire Group member's site or any other site without Aspire HK’s prior written consent.
7.3 The Customer consents that Aspire HK may include the Customer's name, trading name, logo, trademarks and general business information in Aspire HK’s promotional and marketing materials for the Services and on its websites. The Customer may at any time and upon reasonable notice in writing to Aspire HK request that Aspire HK ceases to use its name, logo, trademarks and general business information for these purposes.
8 RECORDS AND DATA
8.1 We will treat all Electronic Instructions as final and unconditional when we receive them through the Platform. This means we shall be entitled (but not obliged) to effect such Electronic Instructions without your further consent and notice to you.
8.2 Our records of Electronic Instructions and Services operations maintained by us or by any relevant person authorized by us shall be binding and conclusive on you for all purposes whatsoever.
8.3 When we deal with you, we will treat all such records as final evidence and you shall not challenge or dispute the admissibility, reliability, accuracy or the authenticity of the contents of such records on the basis that such records were incorporated and/or set out in electronic form or are produced by or were the output of a computer system. You hereby agree to waive any of your rights (if any) to object. This provision shall also apply to all records maintained by Providers where applicable.
9 COLLECTION AND USE OF PERSONAL INFORMATION
9.1 You and your Authorized Users agree that any information provided to us may be disclosed to and used by the following parties:
9.1.1 If applicable, credit bureaus and similar institutions to report or inquire about your financial circumstances and to report or collect debts you owe.
9.1.2 Regulatory authorities, courts, and governmental agencies to comply with legal orders, legal or regulatory requirements, and government requests.
9.1.3 Our service providers, Affiliates, payment intermediaries, regulatory authorities, and governmental agencies to detect and prevent fraud and other criminal activities, and to protect Aspire HK and its Affiliates.
9.1.4 management purposes.
Our Affiliates and other members of the Aspire Group for marketing and risk
9.1.5 Our service providers who perform services for us and help operate our business and the Platform (e.g., cybersecurity, human resources, IT support, and audit services).
9.1.6 Banks, financial institutions, payment intermediaries, or other partners with whom we may jointly offer or develop products and services, provided they do not use your personal data for independent marketing without your consent.
9.1.7 Our professional advisors (including lawyers) to protect and advance our rights.
9.2 Without limiting the foregoing, you agree that we may transfer your and your Authorized Users’ data to any Partner, Provider, payment intermediary, and any company within the Aspire Group for the purposes of processing Electronic Instructions and your transactions and to provide you with the Services (for example, we will share information about you and your transactions with the relevant book-keeping service provider if you opt to use the
book-keeping integration function available on the Platform). Regardless of where we process your information, we will store and protect it in accordance with Applicable Law.
9.3 In addition, you hereby acknowledge that Aspire HK may utilize a third party, Onfido, to process identity checks on your directors and Authorized Users (as applicable). By accepting these terms and conditions, you confirm that you and your directors and Authorized Users (as applicable) have read, understand and accept Onfido Facial Scan
Policy and Release, Onfido Privacy Policy and Onfido Terms of Service.
10 PRIVACY AND DATA RETRIEVAL
10.1 Aspire HK is required to comply with all Applicable Laws, regulations, notices and guidelines issued by relevant authorities from time to time. In this connection, you may be required to provide, through either the Platform, electronic mail or through the ‘MyInfo’ service, relevant data necessary to allow Aspire HK to establish and verify your identity, as well as the identity of all beneficial owners, partners, directors or individuals with executive authority and individuals authorized to open and operate your MCA Account. Such data will be required at the time of opening of your MCA Account and may be required on an ongoing basis thereafter.
10.2 Where you have given us personal data of someone else, including (but not limited to) your Authorized Users, your director and ultimate beneficial owner(s), your customers, employees and contractors, payers and payees, you confirm and represent to us that you have obtained the relevant individual’s express consent to share his/her personal data with us for the purposes set out in this Clause 10. You are required to show to the relevant individual(s) information about provisions of the this Agreement so that they may understand the manner in which their personal data may be collected, used and disclosed by Aspire HK in connection with your dealings with us and our use of their personal data including our use of personal data for direct marketing purposes and their consent to our use of their personal data provided by you on their behalf.
10.3 We will collect, use and disclose your information (including personal data of individuals that you have provided to us) in accordance with our data privacy policy available on our Platform as may be amended, supplemented and/or substituted from time to time.
10.4 Without prejudice to the foregoing, you give us your consent, and authorize us, to at any time and without notice or liability, use and disclose the personal data that you give to us and any particulars of and/or otherwise relating to your MCA Account to:
10.4.1 any Affiliate and any member of the Aspire Group and their respective agents and contractors in any jurisdiction for the purposes of fraud detection and monitoring, regulatory compliance and reporting, customer screening relating to sanctions, anti-money laundering and countering the financing of terrorism compliance processes, and monitoring credit exposures across the Aspire Group;
10.4.2 any Affiliate, payment processor, account issuer, card issuer, financial institution, payment intermediary and contractor in any jurisdiction for the purposes of (i) providing the MCA Account; (ii) facilitating, effecting and/or processing your Electronic Instructions and related transactions on your MCA Account; (iii) facilitating, effecting, and/or processing any additional transactions required to effect transactions related to the MCA Account; and/or (iii) administering any benefit, privilege and term applicable to your MCA Account;
10.4.3 any Affiliate, payment processor, account issuer, card issuer, financial institution, payment intermediary and contractor in any jurisdiction which has a legitimate business purpose for obtaining such information, including offering you products or services in connection with your MCA Account and/or any related transaction, and/or otherwise to facilitate your use of the MCA Account;
10.4.4 any person or organization for the purpose of enabling or facilitating the book-keeping and accounting integration services available on the Platform including but not limited to book-keeping and accounting services providers and information management services providers;
10.4.5 any Affiliate and any member of the Aspire Group and their respective agents and contractors for the purposes of (i) conducting research and/or analysis relating to any product and/or service provided by Aspire HK or such party and (ii) improving, enhancing or developing new services or new methods of processes for business operations in relation to your MCA Account;
10.4.6 any bank, credit or charge card company and merchant for the purpose of any credit or other enquiry in connection with your MCA Account;
10.4.7 any person or organization engaged by or on behalf of any member of the Aspire Group for the purpose of performance of our services or operational functions where these have been outsourced;
10.4.8 any agent appointed by us for the purpose of making, printing, mailing, storing, microfilming and/or filing any personalized statement of accounts, card, label, mailer or any other document or item on which your name and/or other particulars appear, or any data, record or document, and/or otherwise to provide a service to you;
10.4.9 any information garnering or processing organization or consultant or entity conducting surveys or analysis or research or developing system applications for Aspire HK or any other member of the Aspire Group;
10.4.10 the police, law enforcement agency or any public officer for the purposes of conducting an investigation into any matter relating to your MCA Account or any Aspire Group member in any jurisdiction;
10.4.11 any government agency, authority, tribunal or court of any jurisdiction (or equivalent), in compliance with the order, notice or request of such agency, authority, tribunal or court, and/or applicable laws and regulations, and/or for commencing, defending or otherwise participating in any legal or administrative proceedings or inquiry before any court, tribunal or other agency or authority;
10.4.12 any person for the purpose of collecting or recovering on Aspire HK's behalf, or for securing for your benefit, or for the repayment on your behalf, any sums of money owing to Aspire HK by you;
10.4.13 to the extent applicable, any credit bureau of which Aspire HK is a member or subscriber or credit reference agent;
10.4.14 auditors and professional advisors including lawyers, insurers and receivers appointed by any member of the Aspire Group;
10.4.15 any person authorized to operate your MCA Account and any guarantor or security provider relating to your MCA Account;
10.4.16 any rating agency, business alliance partner, insurance company, insurer, insurance broker or direct or indirect provider of credit protection;
10.4.17 any person or organization who, in the course of the sending and delivering of communication materials (including all forms of direct mailers and advertisements) from us to you or the prior preparation, sees any envelope or communication material sent by us to you, which bears our name and/or logo;
10.4.18 any person or organization to clarify or correct any wrongful or erroneous belief, representation or allegation to any third party, whether made by you or on your behalf, both in public and in private, regarding any of our dealings with you or otherwise in relation to our products, processes or policies, regardless of the form of media or platform which may include but is not limited to, published articles, posts, complaints or petitions; and/or
10.4.19 any person Aspire HK reasonably considers it in its interest to make such disclosure (and each of the foregoing persons similarly may disclose to the Aspire HK and to each other) in connection with its provision of its services and the enforcement of any rights and/or performance of any obligation in respect of or in connection with the MCA Account, the Services and/or this Agreement.
10.5 You can ask us what information we hold about you and, where applicable, you can ask us to correct it if it is inaccurate or incomplete. We will need to verify your identity before we can process your request.
10.6 To submit a question or request regarding your personal data, you may contact us via email at hongkong-dpo@aspireapp.com. We will respond to your request as soon as reasonably possible within 30 days after receiving your request.
10.7 Following termination or deactivation of your MCA Account, we may retain personal data and content for backup, archival, audit, disaster recovery, or otherwise in accordance with Applicable Law, guidelines and directives (for example, regulations relating to the prevention of money laundering and countering the financing of terrorism).
11 CONFIDENTIALITY
11.1 All information relating to Aspire HK and/or Aspire Group, designated as being confidential, and all information not expressly designated as being confidential, but which should reasonably be deemed confidential by reason of its nature or content is considered confidential information (“Confidential Information”).
11.2 You hereby undertake to take all necessary steps to protect the confidential nature of all Confidential Information belonging to Aspire HK and its Aspire Group Affiliates, including only sharing the Confidential Information with parties which have a need to access such information in order to exercise rights and obligations in connection with your MCA Account.
11.3 This obligation to maintain confidentiality does not extend to information generally available to the public, already in the possession of or known to you at the time of disclosure, if you and/or your employees are obliged by law to disclose such information, and if the information had been disclosed to you by a third party without any obligation of
confidentiality.
11.4 The provisions of this Clause 11 shall survive the termination or expiry of this Agreement.
12 DISCLAIMER
12.1 Aspire HK does not provide any warranty of any kind in respect of:
12.1.1 the Services, including warranties of accessibility, quality, provision or performance of any goods or services;
12.1.2 any content, including warranties of accuracy, adequacy, currency or reliability;
12.1.3 hyperlinks on the Platform to any other websites or content, which are not an endorsement or verification of such websites or content; and
12.1.4 the Partner Services.
12.2 The Services are provided "as is" and Aspire HK expressly disclaims all warranties of any kind, whether express, implied, statutory, or otherwise, including without limitation any warranty of merchantability, fitness for a particular purpose, or non-infringement. Aspire HK does not guarantee that the Services will operate uninterrupted or error-free, will always be available, contains and/or displays information that is current or up-to-date, or will operate in combination with your hardware, other software, third-party services, or Customer Materials. Although Aspire HK makes reasonable efforts to ensure the Services are free of viruses or harmful components, it cannot guarantee this. Aspire HK also cannot guarantee that the Services will not incur delays, interruptions, or other errors outside its reasonable, which are inherent in internet and electronic communications.
12.3 Unless indicated otherwise, Aspire HK does not offer financial advice and the Customer must not treat any information displayed on the Platform as financial advice.
12.4 Any claims against or disputes that you may have with a Provider are to be settled between you and the relevant Provider. You agree that you will not claim against us or any member of the Aspire Group in this respect.
12.5 Settlement of any claims or disputes that you have raised against Aspire HK will be processed in accordance with our internal policies and the Network Rules (where applicable).
12.6 Aspire HK may work with third parties, including other members of the Aspire Group, to provide the Services. If the Customer receives information from Aspire HK regarding or marked or indicated as provided by such third parties, the Customer will not rely on such information and will not make any claims against such third parties or Aspire HK in relation to such information. The Customer bears all risk and responsibility if it chooses to rely on such information.
13 SUSPENSION AND TERMINATION
13.1 At any time, you can stop using any part of the Services and, subject to any of the Product Schedules, terminate the Product Schedules by giving us thirty (30) days' prior written notice where there are no outstanding transactions between you and Aspire HK.
13.2 Aspire HK shall have the right to restrict, freeze or suspend the Customer’s use of or access to the MCA Account, the Platform and the Services, or terminate all or any part of these Terms and any of the Services with immediate effect without prior notice and without giving any reason if:
13.2.1 the Customer is in breach of Applicable Law or any of these Terms at Aspire HK’s discretion;
13.2.2 the Customer has, or is reasonably suspected by us to have, breached the Terms or breached the Acceptable Use Policy;
13.2.3 the Customer has given Aspire HK false or inaccurate information, or Aspire HK has been unable to verify any information the Customer has provided;
13.2.4 the Customer notifies Aspire HK of, or Aspire HK suspects or identifies, any suspected or actual unauthorized transactions;
13.2.5 where we have reason to believe that the Customer is engaged in fraud, money laundering, terrorist financing or other illicit activity, or we find out about a continuing or potential dispute or any allegation of fraud or wrongdoing in the Customer’s organization or the Customer’s management team or between the Customer’s directors, shareholders, authorized signatories or the Customer’s partners;
13.2.6 where we have reason to believe that the Customer may cause us to breach our internal risk appetite policy;
13.2.7 where a licensed partner of ours requests that we terminate Services/restrict the use of the Customer’s MCA Account;
13.2.8 we receive Instructions from the Customer’s representatives or any of the Customer’s directors or partners (whether or not the director or partner is an Authorized User) which contradict the Customer’s Electronic Instructions;
13.2.9 we are required to comply with Applicable Law, or any Applicable Law which we, or any Affiliate have to comply with makes it illegal to maintain or allow you to continue to use or access your MCA Account, the Platform or the Services;
13.2.10 we receive a lawful notification and request to do so from law enforcement, regulators, governmental bodies, or financial partners of members of the Aspire Group;
13.2.11 the Customer becomes subject to an Insolvency Event; and/or
13.2.12 a Force Majeure Event occurs that prevents you from performing any of your obligations under these Terms for a period exceeding one (1) month.
13.3 Where we are allowed under Applicable Law, we will tell you we have terminated, frozen, suspended or restricted your MCA Account as soon as we can.
13.4 We will not be liable for any loss, damage, expense, cost, claim or proceeding, whether direct, indirect or consequential, which you or any other person may suffer or face due to us exercising any of our rights in this Clause 13.
13.5 You may terminate your MCA Account at any time by giving us instructions to do so.
13.6 When your MCA Account is terminated or suspended, we may at our discretion end all Services provided by Aspire HK.
13.7 Upon the termination of your MCA Account, any accrued liabilities and all obligations under these Terms will remain continuing and we shall remain entitled to debit from your MCA Account any amount outstanding and owing to us, including any overdrawn amounts (if any), costs, expenses, fees, commission, charges and payments owing from transactions carried out before the termination of your MCA Account, and any other charges you owe on your MCA Account.
13.8 The rights conferred on Aspire HK under this Clause 13 shall survive termination of this Agreement.
14 CUSTOMER REPRESENTATION AND WARRANTIES
14.1 You represent and warrant that:
14.1.1 you are a company duly incorporated under the laws of its place of its formation;
14.1.2 you have the full capacity, power and authority to enter into and perform your obligations under this Agreement;
14.1.3 you have obtained all necessary consents, approvals, and authorizations to enter into and perform your obligations under this Agreement;
14.1.4 your entry into and performance of these Terms do not:
14.1.4.1 conflict with or result in the breach of or default under any provisions of your articles of incorporation or association, by-laws or any other constituent documents; and
14.1.4.2 conflict with or result in the breach of any Applicable Law or other restrictions or obligations that your business is subject to;
14.1.5 all information provided by you to Aspire HK is accurate, complete, and up-to-date
14.1.6 you will use the Services only for lawful purposes and in compliance with these Terms and comply with all Applicable Law in connection with your use of the Services;
14.1.7 you are not currently and have never been subject to any sanctions, investigations, or enforcement actions by any governmental or regulatory authority; and
14.1.8 you are not engaged in any fraudulent or unlawful activities and your use of the Services will not contravene any Applicable Law.
15 CUSTOMER INDEMNITY
15.1 You agree to indemnify, defend, and hold harmless Aspire HK and its Affiliates, officers, directors, employees, agents, and representatives from and against any and all claims, liabilities, damages, losses, expenses, and costs (including reasonable legal fees) arising out of or in connection with:
15.1.1 your breach of any term of the Terms;
15.1.2 any misrepresentation or breach of any representation or warranty made by you in this Agreement;
15.1.3 your violation of, or failure to comply with, any Applicable Law;
15.1.4 your violation of, or failure to comply with, the Acceptable Use Policy;
15.1.5 your use or misuse of the Services and the Platform, including any third-party claims made in connection with your actions or omissions;
15.1.6 a third party alleging that Aspire HK’s use of the Customer Materials as permitted by the Terms infringes any Intellectual Property Rights;
15.1.7 Aspire HK acting on any of your or any of your Authorized User’s instructions or which Aspire HK reasonably believe to have been made by you or your Authorized User; and
15.1.8 any content or data provided by you, including any claims that such content or data infringes the rights of any third party.
15.2 This indemnity shall survive the termination or expiration of this Agreement.
16 FORCE MAJEURE
16.1 Aspire HK and members of the Aspire Group shall not be liable for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control ("Force Majeure Event").
16.2 A Force Majeure Event includes any act, event, non-happening, omission, or accident beyond our reasonable control and includes, in particular (without limitation), the following:
16.2.1 Strikes, lock-outs, or other industrial action.
16.2.2 Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.
16.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, or other natural disaster.
16.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport, or other means of public or private transport.
16.2.5 Impossibility of the use of public or private telecommunications networks.
16.2.6 Terrorist attack, nuclear, chemical or biological contamination, or extreme abnormal weather conditions.
16.2.7 Interruption or failure of a utility service including the internet, electric power, gas or water.
16.2.8 The acts, decrees, legislation, regulations, or restrictions of any government.
16.2.9 The imposition of a sanction, embargo or breaking off of diplomatic relations, or any change in Applicable Law.
16.2.10 Any other event that is outside of our reasonable control that materially affects our ability to perform any obligations under the Terms.
16.3 Our performance under this Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Agreement may be performed despite the Force Majeure Event.
17 LIMITATION OF LIABILITY
17.1 You acknowledge and agree that Aspire HK will not be liable to you, any of your Authorized Users or any third party for any inconvenience, loss, damage, claim, cost or expense or embarrassment or injury incurred or suffered in connection with any of the following:
17.1.1 Any act, omissions or delay of any Affiliate or any other third party.
17.1.2 Any refusal or delay by any Affiliate or any other third party to authorize, process, facilitate or approve any transaction, funds transfer or reversal you wish to effect in connection with your MCA Account or any Service.
17.1.3 If you are deprived of the use of any goods, services, machinery, equipment, products and/or systems (whether electronic, telecommunicative or otherwise) as a consequence of any action, omission or delay by any Affiliate or any other third party.
17.1.4 The Platform, MCA Account or any Services not being available due to system or server maintenance or failure, the breakdown/non-availability of any network, any computer virus or malicious code, or any transmission interruption or failure.
17.1.5 The non-delivery, delayed delivery, misdirected delivery or the non-receipt of any Services.
17.1.6 Any damage to or loss of or inability to retrieve any data or information that may be stored in any microchip or circuit howsoever caused or any failure in the performance or function or breakdown or disruption of any of the Aspire HK's computers (whether hardware or software), machinery, equipment, products and/or systems (whether electronic, telecommunicative or otherwise) maintained by, used for, by Aspire HK or in connection with Aspire HK's business or otherwise whatsoever, including but not limited to the failure or inability of such computers, machinery, equipment, products and systems or any one or more of them to accept, recognize, store, process and/or transmit dates or data
with respect to dates.
17.1.7 Any non-processing or delay in processing of Electronic Instructions by us or by any Provider through whom your Electronic Instructions are transacted.
17.1.8 Any transaction or Electronic Instruction initiated by you or your Authorized User being declined by any bank, financial institution, payment intermediary or other service provider.
17.1.9 Inaccurate or incomplete content, reliance on or use of the information provided on any channel and medium for any purpose.
17.1.10 Any disclosure of any information which you have consented to us collecting, using or disclosing or where such collection, use or disclosure is allowed under Applicable Laws.
17.1.11 Any unauthorized and/or unlawful access to our machines, data processing system or transmission link.
17.1.12 Any act of force majeure such as acts of God, war or warlike hostilities, civil commotions, riots, blockades, embargoes, sabotage, strikes, lock-outs, fire, flood, shortage of material or labor, power failures, delay in deliveries from sub-contractors.
17.1.13 You failing to comply with these Terms or in any way being involved in fraud, forgery or other unauthorized use of your MCA Account or any Service.
17.1.14 Any event outside our control.
17.2 Aspire HK and members of the Aspire Group shall not be liable to you or any third party for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, or any loss of data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Services or the Platform; (ii) any conduct or content of any third party on the Services or the Platform; (iii) any content obtained from the Services or the Platform; and (iv) any unauthorized access, use, or alteration of your transmissions or content, in each case howsoever caused or arising and whether arising directly or indirectly and whether or not foreseeable, even if Aspire HK is actually aware of or has been advised of the likelihood of such loss or damage.
17.3 In no event shall Aspire HK's aggregate liability for all claims relating to the Services exceed the amount you paid Aspire HK, if any, for accessing or using the Services during the 12 (twelve) month period immediately preceding the date on which the claim arose.
17.4 Nothing in these terms shall limit or exclude Aspire HK's liability for gross negligence, willful misconduct, or any other liability that cannot be excluded or limited under Applicable Law.
17.5 The provisions of this Clause 17 shall survive the termination or expiry of this Agreement.
18 COMMUNICATIONS
18.1 Aspire HK shall be entitled (but not obliged), at its sole discretion, to rely and act on any Electronic Instruction, communication or request which Aspire HK in its sole opinion believes originates from you (whether orally or in writing (including by email) and whether in person or over the telephone, by facsimile, via the Platform or other means of telecommunication and whether genuine or with or without your consent or authority), and any action taken by Aspire HK pursuant thereto shall bind you.
18.2 Any Electronic Instruction, notice, certificate, report or document called for by or provided to Aspire HK (whether or not addressed to Aspire HK) in accordance with or for the purpose of this Agreement may be relied upon by Aspire HK as sufficient evidence of the facts therein and shall, in the absence of manifest error, be conclusive and binding on the Customer, and Aspire HK shall not be responsible for any loss occasioned by acting or refraining from acting in reliance on any such Electronic Instruction, notice, certificate, report or document.
18.3 When you ask us to transfer funds, it is your responsibility to make sure that you give us complete, clear and accurate information so we can carry out your request.
18.4 Aspire HK shall not be under any duty to verify the identity of any person communicating purportedly as or on behalf of you.
18.5 Aspire HK may serve any writ of summons, statement of claim, statutory demand, bankruptcy application or other legal process or document in respect of any action or proceedings under this Agreement required by any relevant law, including without limitation, the rules of court or other statutory provisions, to be served on you by personal service, by leaving the same at, and/or sending the same by ordinary post, to the last known address (whether within or outside Hong Kong and whether such address is a post office box or is a place of residence or business) as may be provided or disclosed to Aspire HK or its solicitors. To the fullest extent permitted by law, you agree that such legal process or document is deemed to have been duly served on you even if it is returned undelivered: (a) on the date of delivery, if sent by hand and/or left at the last known address; or (b) on the date immediately following the date of posting, if sent by post. You further agree that service of such legal process is deemed to be good and effective service of such legal process on you and nothing in this Agreement shall affect Aspire HK's right to serve legal process in any other manner permitted by law.
19 CONCLUSIVENESS OF DOCUMENTS
19.1 Any Electronic Instruction or document relating to any transaction bearing your signature (physical, digital, electronic or otherwise) or authorized by you on the Platform or otherwise made with your instruction shall be conclusive evidence of the fact that the transaction therein stated or recorded was authorized and properly made or effected by you.
19.2 You shall ensure that any statements, confirmations, advices and records (“Statement”) you receive from Aspire HK are examined within a reasonable time of receipt and, thereupon, you shall promptly notify Aspire HK of any mistake or discrepancy of which you become aware from such Statement within seven (7) days of the date of such
Statement.
19.3 Aspire HK shall not be responsible for your reliance on any Statement which is subsequently updated or corrected or for the accuracy or timeliness of information supplied by any Affiliate or third party to Aspire HK.
19.4 If you do not notify Aspire HK in writing of any inaccuracy or error in any Statement within seven (7) days of the date of such Statement, it shall constitute conclusive evidence that:
(a) every transaction stated therein has been effected by you; and
(b) every charge stated therein, every amount debited therein has been validly and properly incurred or debited in the amount stated therein.
19.5 Nothing in this Clause 19 shall prevent Aspire HK from rectifying any errors, omissions in any Statement and any such amended Statement shall be binding on you.
20 VARIATION OF THIS AGREEMENT
20.1 We may amend, supplement, delete and/or revise any part of this Agreement at any time with notice, and such changes shall take effect on the date specified in the notice. Any such notices and updated terms will be published on the Platform or otherwise notified to you.
20.2 If you do not accept the revised terms, you have the option to close your MCA Account before they take effect. If you retain or use the MCA Account after Aspire HK has given notice of any changes in this Agreement, you are deemed to have accepted and agreed to such changes without reservation.
21 MISCELLANEOUS
21.1 You and your Authorized Users are not permitted to assign, transfer, mortgage, charge or subcontract any of your rights and obligations, whether in whole or in part, to any party without prior written consent from Aspire HK.
21.2 Aspire HK and members of the Aspire Group reserve the right to assign and/or transfer their rights under this Agreement at their discretion without requiring your or your Authorized User's consent.
21.3 The illegality, invalidity, or unenforceability of any provision of this Agreement under the law of any jurisdiction does not affect its legality, validity, or enforceability under the law of any other jurisdiction. Should any provision in this Agreement be deemed invalid, unlawful, or unenforceable under any applicable law, the remaining provisions shall
remain in full force and effect and shall not be affected or impaired in any way.
21.4 No failure or delay by Aspire HK or any member of the Aspire Group in exercising any right or remedy under this Agreement will operate as a waiver of that right or remedy, nor will any single or partial exercise of any right or remedy preclude any other or further exercise of that right or remedy or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
21.5 Nothing in this Agreement will be construed as creating an agency, a partnership or joint venture between the Parties, constitute any Party being the agent of the other Party, or authorize any Party to make or enter into any commitments for or on behalf of the other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
21.6 MCA Accounts and Services may not be (a) used for any purpose that is unlawful or prohibited by the Terms, (b) provided to or used for any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) or the U.S. Department of State.
22 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CHAPTER 53B
A person who or which is not a party to this Agreement shall not have any right under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore (as may be amended from time to time) to enforce any provision of this Agreement. This provision does not apply to members of the Aspire Group.
23 GOVERNING LAW AND JURISDICTION / RIGHTS OF THIRD PARTIES
23.1 This Agreement is governed by and construed in accordance with Hong Kong law.
23.2 The Customer hereby submits to the exclusive jurisdiction of the Courts of Hong Kong with respect to any claim or dispute concerning or arising from this Agreement or any transactions in connection with the MCA Account. The Customer hereby waives any immunity or objection which it may now or hereafter have to the courts of Hong Kong being the forum to hear, determine and settle any dispute and agree not to claim that any such court is an inconvenient or inappropriate forum. Nothing contained in this Clause 23 shall limit the right of Aspire HK to take proceedings in any other court of competent jurisdiction or in any other jurisdiction.
24 CLASS WAIVER
24.1 To the fullest extent permitted by law, each Party agrees that any dispute arising out of or in connection with the Terms will be conducted only on an individual basis and not in a class, consolidated or representative action. Each Party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to the Terms or any of the transactions contemplated between the Parties.
25 DEFINITIONS
In this Agreement:
“Acceptable Use Policy” means the acceptable use policy of the Platform as set out on our website at https://aspireapp.com/tnc/acceptable-use-policy.
“Advance Schedule” has the meaning given in Clause 2.1.3.
“Affiliate” means a legal entity that (a) owns or controls in whole or in part another legal entity, (b) is owned or controlled in whole or in part by one or more other legal entities or natural persons, or (c) is under common ownership or control in whole or in part with another legal entity.
"Aspire HK" means AFT HK Limited, its successors and assigns;
“MCA Account” means the Customer’s multi-currency account which they have opened with Aspire HK.
“Authorized User” means any person authorized by you from time to time to use the Services in relation to your MCA Account.
“Applicable Law” means in any jurisdiction in which the Services are to be performed any and all applicable laws, regulations and industry standards or guidance and any applicable and binding judgement of a relevant court of law, including in relation to money service business, payment services, anti-money laundering, consumer and data protection.
“Aspire Group” means Aspire HK and its related entities, including any of Aspire HK’s subsidiaries, Aspire HK’s holding company and its subsidiaries (in each case wheresoever situated).
“Business Days” means Monday through Friday, excluding Saturdays, Sundays, or holidays in Hong Kong.
“Cards Schedule” has the meaning given in Clause 2.1.2.
“Confidential Information” has the meaning given in Clause 11.1.
“Customer Materials” means any systems, software, materials, data, content, logos, trade marks, trade names, documents and/or other equipment or materials provided by the Customer to Aspire HK and used by Aspire HK directly or indirectly in connection with the supply of the Services.
“Electronic Instruction” means any instruction, communication, order, message, data, information or other material from you or your Authorized Users in relation to the Services.
“Fees” has the meaning given to it in Clause 6.1.
“Force Majeure Event” has the meaning given to it in Clause 16.1.
“Intellectual Property Rights” has the meaning given to it in Clause 7.2.
“Insolvency Event” means any corporate action, legal proceedings, or other procedure or step taken in relation to: (a) suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization; (b) a composition, compromise, assignment or arrangement with any creditor; or (c) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer.
“Network Rules” means the guidelines, bylaws, rules, agreements and regulations imposed by the financial services providers that operate payment networks supported by Aspire HK from time to time (including the payment card scheme operating rules for Visa, MasterCard, or American Express).
“Partner” means the relevant entity(ies) that provide(s) the Partner Services to you.
“Partner Services” means any service provided by a Partner that is available to you via the Platform from time to time.
“Partner Terms” means the terms and conditions for the Partner Services.
“Payments & FX Schedule” has the meaning given in Clause 2.1.1.
“Platform” means the electronic platform available at https://aspireapp.com/ (or such sub-domain or additional or replacement website(s)) that allows you to use the Services, and includes any mobile or desktop application through which the Platform may be accessed.
"Provider" means:
1. the relevant Partner or any other person (individual or non-individual) which offers services and/or products, directly or indirectly, through the Platform;
2. any person to whom we outsource certain functions or activities to allow us to operate and/or provide the Platform and relevant Services;
3. any government, regulator, law enforcement agency, financial institution, and ancillary service provider (for example, telecommunication, internet access, cloud network, logistics, facilities management, data centers, system hosting, call centers, equipment and software providers), agent or subcontractor involved in the provision of relevant Services; and
4. our agents or storage or archival service providers for the purpose of making, printing, recording, mailing, storage, and/or filing any documents or items on which such information appear.
“Statement” has the meaning given in Clause 19.2.
“Services” means any services of Aspire HK provided to the Customer.
“Terms” has the meaning given to it in Clause 2.2.
EXHIBIT A - JURISDICTION-SPECIFIC TERMS FOR HONG KONG
1. The following definitions shall be added to Clause 25 (Definitions):
“Hong Kong” means the Special Administration Region of Hong Kong, People’s Republic of China.
“Stored Value Facility” has the meaning as defined in Section 2A of the Payment Systems and Stored Value Facilities Ordinance (Cap. 584, Laws of Hong Kong).
2. The following Clause 2.4 shall be added to Clause 2:
“2.4 Aspire HK is not a bank or a credit institution, and does not provide to Customers any deposit accounts or Stored Value Facilities. Aspire HK does not accept any deposit from you or accept any stored value from you. Any reference to ‘account’ on the Platform is to the MCA Accounts through which Aspire HK provides the Services as described in Clause 2, which has no stored value function. By accepting these Terms, you acknowledge that the MCA Account does not qualify as a bank account as defined by Applicable Law, and thus funds held in your MCA Account or in the process of transaction are not insured or protected by the Hong Kong Deposit Protection Scheme. However, Aspire HK shall strictly adhere to applicable requirements that ensure the liquidity and protection of funds held on your behalf.”
3. Section 22 (Contracts (Rights of Third Parties) Act, Chapter 53b) shall be deleted in its entirety.
Exhibit B - JURISDICTION-SPECIFIC TERMS FOR U.S.
The following terms shall apply to United States (“U.S.”) customers.
- The following definitions shall be added to Clause 25 (Definitions):
“Aspire US” means AFT US LLC. For the avoidance of doubt, Aspire US is an Affiliate of Aspire HK.
“Aspire Checking Account” means your U.S. deposit account provided by Column N.A., member FDIC.
- The following Clause 2.4 shall be added to Clause 2:
“2.4 Multicurrency services are provided to U.S. customers by Aspire US, which acts as a service provider to Aspire HK. When you request the movement of funds to or from your Aspire Checking Account in connection with the MCA Account, you are agreeing to accept an advance of funds from Aspire US in the requested amount. You acknowledge and agree that Aspire US may credit or debit, as relevant, your Aspire Checking Account in order to complete or repay the USD component of the advance, as relevant. You acknowledge and agree that Aspire US and its Affiliates may debit or credit, as relevant, the balance of your MCA Account in order to complete the non-USD component of the advance. You acknowledge and agree that the MCA Account and any related Services are provided only by Aspire US and its Affiliates and not by the financial institution provider of the Aspire Checking Account.”
3. Section 22 (Contracts (Rights of Third Parties) Act, Chapter 53b) shall be deleted in its entirety.